The Government has announced it will mandate employee vaccinations across the hospitality industry.
Prime Minister Jacinda Ardern has said, “If customers must be vaccinated, then so too, must the workers.”
“The timing of this coming into force will depend on when we move to the Covid-19 Protection Framework.”
Ardern said the requirement would ensure staff and customers were treated equally, and it would play a “big part in helping to minimise the spread of the virus in the highest risk venues by reducing the potential for Covid to enter the business”.
The Prime Minister rejected suggestions the new requirement constituted government overreach and said the move had a public health basis, which balanced the rights of workers with the rights of business clients.
Challenges welcomed
Reacting to the news Restaurant Association CEO Marisa Bidois said vaccination mandates for workers in the hospitality industry will present challenges, but are welcomed.
“This is a tricky new area of employment law, and so ensuring that business owners are legally empowered to enforce vaccinations in workplaces, is a positive step towards ensuring safe and healthy workplaces.”
In a survey last month of its members, 40 per cent of respondents indicated that they would be willing to put a vaccination policy in their workplaces, while 25 per cent were unsure.
“In our discussions with members, feedback has shown some concerns around enforcing a policy that could make employers liable for discrimination on the basis of vaccination status.
“Whilst mandating a policy is a welcome step towards helping to keep businesses safe and operational, there is still an ongoing concern around losing valued employees to the mandate.
“We need to remember that our industry is still suffering a skills shortage and so rolling this out is going to have to be carefully managed to reduce the risk of losing a percentage of our workforce.”
Ease Legal Risks
This positioned was echoed by Julie White, CEO of the Hospitality Association of New Zealand. In a statement White said this law will create stressful weeks for hospitality staff and employers, but it will ease some of the bigger legal risks.
“We had to point these risks out in consultation a few weeks ago, so it’s helpful to have this clarity now. The law needs to eliminate the risk that any employer will be sued if they follow the Government’s framework for sacking unvaccinated workers.”
She warns that Government or public enthusiasm for the law comes at a high price for a sector already most hit by the Government’s health rules.
“After months of low or no income, hospitality is on a knife edge. After everything it’s been through, trying to hold onto staff – it will now be asked to go through the trauma of sacking treasured career workers, and to pay for their notice period.”
She says the sector is wary of the effects and costs of the law as there is a lot more detail to come, and practicalities to sort out.
“It is currently doubtful that discrimination based on a health and safety assessment specific to each venue can legally be used to support a society-level health objective. Discriminating against non-vaccinated people will be a prima facie breach of the Bill of Rights provision that people can refuse medical treatment. The Human Rights Act prohibits discrimination on grounds of things such as pregnancy, religious and ethical beliefs, and political opinion,” said White.
Four Weeks Notice
Minister for Workplace Relations and Safety Michael Wood told media the move was part of a range of measures to help protect workplaces and workers from Covid-19.
A new four-week notice period will apply to mandated employees who refuse to get vaccinated if their employment is terminated.
“Our law change will require a minimum of four weeks’ paid notice for any employee who loses their job because they are not vaccinated,” he said.
“This change will only apply to employees who do not have a notice period, or whose notice periods are shorter than four weeks. Most employees will have notice periods in their employment agreement.
The new announcements were geared towards giving clarity to businesses, he said.
“A number of businesses have already gone through a risk assessment process to mandate vaccinations at their workplace, but we’ve had calls from both businesses and unions to make this process as clear as possible. That’s why we will introduce a risk assessment process in law for employers to follow when deciding whether they can require vaccination for different types of work.
Greater Clarity & Record Keeping
“We know though that many businesses and employers who are not covered by vaccine certificates want greater clarity on whether they can mandate vaccines. This process will provide businesses with a clear and simplified legal framework to make decisions about requiring staff to be vaccinated or not.”
Employers will be required to keep records about workers’ vaccination status. Wood said MBIE would work with the Office of the Privacy Commissioner to provide practical guidance on how to ensure workers’ records were handled appropriately.
